Changes to Australian Workplace Laws!

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Changes to Australian Workplace Laws!

Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022

The Australian Government has passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. This legislation amends the Fair Work Act to change a number of existing rules and introduces a range of new workplace laws.

The Fair Work Act includes a range of new laws:

The Fair Work Act has been amended to change a number of existing rules and includes a range of new laws. Many of these changes start on 7 December 2022, but other changes start later. (1) Pay Secrecy, Job Ads and Flexible Work (2) Gender Equality Measures and Small Claims Process (3) Enterprise Agreements and Enterprise Bargaining (4) Abolition of the ABCC and ROC

Let us take each one of these to understand the changes:

Prohibiting pay secrecy

These changes have taken effect from 7 December 2022, but transitional arrangements apply to these new laws. These changes prohibit secrecy about employees’ pay.

Disclosing pay and workplace conditions

The Fair Work Act now gives employees and future employees new workplace rights to:

share or not share information about:
their pay
their employment terms and conditions that would be needed to work out their pay, such as their hours of work
ask other employees (with the same or a different employer) about their pay

Employees can’t be forced to give this information to another employee if they don’t want to. Employees can exercise these rights even after they leave their employment.

Pay secrecy terms

From 7 June 2023, pay secrecy terms inconsistent with the new workplace rights can’t be included in employment contracts or other written agreements that were entered into on or after 7 December 2022. We have the power to start court proceedings for alleged breaches of this new prohibition. Employers who have paid secrecy terms in their contracts that are inconsistent with the new prohibition could face penalties. If a fair work instrument (such as an award or enterprise agreement) or an employment contract entered into on or after 7 December 2022 has a pay secrecy term in it, that term will have no effect and can’t be enforced. This also applies after 7 December 2022 for employment contracts in effect before 7 December 2022, if the contract:

doesn’t include a pay secrecy term, or
includes a pay secrecy term and the contract is changed after 7 December 2022.

When this happens, the laws will apply after the contract is changed. For enterprise agreements, awards, or other fair work instruments, any pay secrecy terms have no effect and can’t be enforced after 7 December 2022. This applies regardless of whether the instrument was made before, on, or after this date.

Job ads

These changes are effective from 7 January 2023. From 7 January 2023, job advertisements (ads) can't include pay rates that would breach:

the Fair Work Act, or
a fair work instrument (such as an award or enterprise agreement).

This means that job ads can’t include pay rates that undercut employees’ minimum entitlements. Employers advertising pieceworker positions where the employee would also be entitled to a periodic rate of pay (for example an hourly or weekly rate of pay) need to:

specify the periodic pay rate that applies, or
state in the ad that a periodic pay rate will apply.

Flexible work

These changes take effect from 6 June 2023. More employees will be able to request flexible working arrangements. From 6 June 2023, the right to request flexible working arrangements will also apply to:

employees, or a member of their immediate family or household, experiencing family and domestic violence
employees who are pregnant.

Employers will have new obligations before they can refuse a request from an employee for a flexible working arrangement. Employers will have to:

discuss the request with the employee
make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances
consider the consequences of refusal for the employee
provide a written response that includes:
- an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request
- other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes
- information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.

Fixed terms contracts

These provisions take effect from 6 December 2023, unless an earlier date is set by the Australian Government. From 6 December 2023, employers can no longer employ an employee on a fixed-term contract that:

is for 2 or more years (including extensions)
maybe extended more than once, or
is a new contract:
- that is for the same or a substantially similar role as previous contracts
- with substantial continuity of the employment relationship between the end of the previous contract and the new contract, and either:
  - the total period of the contracts is 2 or more years,
  - the new contract can be renewed or extended, or
  - a previous contract was extended.

Employers must not take certain actions to avoid the new restrictions from applying. For example, they can’t:

delay re-engaging an employee for a period
re-engage the employee and engage someone else instead to do the same or substantially similar role.

Some exceptions will apply, including if the fixed-term contract is:

for a training arrangement, or
the employee is covered by an award that allows fixed-term contracts in the above circumstances.

Gender equality measures and small claims process

These changes are effective from 7 December 2022. There are new protected attributes at work:

breastfeeding
gender identity
intersex status.

This means employers are prohibited from taking adverse action against current or future employees because of these attributes from this date.

Prohibiting workplace sexual harassment

The Fair Work Act will prohibit sexual harassment in connection with work, which includes the workplace. The protection won’t apply to sexual harassment of work that starts before 6 March 2023. This protection will apply to:

workers including employees, contractors, work experience students, and volunteers
future workers
anyone conducting a business or undertaking.

A person or company will also be liable for sexual harassment committed by an employee or agent in connection with work unless they can prove that they took all reasonable steps to prevent sexual harassment. Employees who believe they’ve been sexually harassed in connection with work, whether before or after 6 March 2023, can continue to make a ‘stop sexual harassment’ application to the Commission. These changes take effect from 6 March 2023.

Unpaid parental leave

There are changes to how employers need to respond to requests for extending unpaid parental leave. These new requirements apply to requests for an extension of unpaid parental leave made from 6 June 2023. When an employee makes a request to extend their unpaid parental leave, the employer can:

agree to the request, or
discuss and agree with the employee to a different extension period.

The employer needs to put this in writing to the employee within 21 days of the request. If an employer refuses a request to extend unpaid parental leave, the employer needs to:

respond to the request in writing within 21 days
only refuse a request if:
- the employer has discussed and genuinely tried to reach an agreement with the employee about an extension, but not reached an agreement
- the employer has considered the consequences of refusing the extension
- the refusal is on reasonable business grounds.

The written response needs to:

include details of the reasons for refusal, including the employer’s particular business grounds and how those grounds apply to the request
state an alternative period of extension the employer would be willing to agree to or that there isn’t any extension they would agree to
include the new dispute resolution provisions that the Commission will have.

Changes to Fair Work Act objectives

New Fair Work Act objectives The Fair Work Act has new objectives that need to be considered when interpreting and applying the Act:

promoting job security
promoting gender equality.

This means that the Commission needs to take these objectives into account when performing its functions or exercising its powers under the Fair Work Act. For example, the Commission needs to consider these objectives when it sets the terms and conditions in awards.

New modern awards objectives

The Fair Work Act’s modern awards objective has also been changed to include the following factors for the Commission to consider when setting award terms and conditions:

the need to improve access to secure work across the economy
the need to achieve gender equality in workplaces.

The changes to the Fair Work Act and modern awards objectives apply after 7 December 2022 to:

proceedings in the Commission already underway on this date
proceedings or matters in the Commission that start after this date.

New minimum wages objective

The Fair Work Act’s minimum wage objective has also been changed to include a new factor for the Commission to consider when setting minimum wages. This is the need to achieve gender equality and applies after 7 December 2022 to annual wage reviews from the 2022-23 financial year.

New equal remuneration principle

The Fair Work Act now has a new equal remuneration principle to guide the Commission’s consideration of equal remuneration and work value cases. This is to help the Commission issue pay increases to workers in low-paid, female-dominated industries. For equal remuneration cases, the Commission can now make an equal remuneration order (ERO) on its own initiative as well as on application. When considering an application, the Commission:

can consider comparisons between occupations and industries or if work has been undervalued based on gender historically
isn’t limited to comparing similar work and doesn’t need a male comparator
isn’t required to find discrimination based on gender if considering a comparison or if work has been historically undervalued based on gender.

These changes apply after 7 December 2022 when the Commission performs functions or exercises powers:

in proceedings already underway on this date, or
in new proceedings or matters after this date.
determinations
EROs
award and award variations.

Considerations when performing our functions

These changes take effect from 7 December 2022. The new laws also include rules about how the Commission and the Fair Work Ombudsman (us) perform our functions. When providing education, assistance, and advice, both organizations need to make sure we’re considering the need to provide guidelines, material, and community outreach in multiple languages.

The enhanced small claims process

These changes take effect from 1 July 2023. The monetary cap for recovering unpaid entitlements via the small claims process will increase from $20,000 to $100,000.

Enterprise agreements and enterprise bargaining

The Fair Work Act has been amended to include new enterprise agreements and bargaining laws. The changes summarised on this page started on 7 December 2022. Other changes to enterprise agreements and bargaining start later.

Termination of enterprise agreements after the nominal expiry date

These changes take effect from 7 December 2022. The process for terminating an enterprise agreement has changed. These changes start from 7 December 2022 and apply to applications already before the Commission and to new applications. The Commission has to terminate an enterprise agreement if it is satisfied that one of the following applies:

the continued operation of the agreement would be unfair to the employees it covers
the agreement doesn’t or is unlikely to, cover any employees, or
all of the following apply:
- the continued operation of the agreement poses a significant threat to the viability of the business
- terminating the agreement is expected to reduce the risk of termination of employment due to redundancy, insolvency, or bankruptcy
- if the agreement has terms about termination entitlements, the employer or employers it covers guarantee the termination entitlements to the Commission.

Sun setting of zombie agreements

These changes take effect from 7 December 2023. All agreements made before the commencement of the Fair Work Act that are still in operation will automatically ‘sunset” (or terminate) on 7 December 2023 (which is 12 months after these changes commenced). These agreements, commonly known as Zombie Agreements’, include:

agreement-based transitional instruments
Division 2B state employment agreements
enterprise agreements made between 1 July 2009 and 31 December 2009.

Errors in enterprise agreements

These changes take effect from 7 December 2022. The Commission will have new powers to correct errors in enterprise agreements on its own initiative or on application by an employer, employee, or union covered by the agreement. This takes effect from 7 December 2022. The Commission will have the power to decide how these corrections are made to an agreement. The Commission will also have the power to validate a decision to approve an agreement or a variation to an agreement if the wrong version was mistakenly submitted for approval. This applies to approvals given by the Commission before, on, or after 7 December 2022. The validation process could start on the Commission’s initiative or on application.

Initiating bargaining

These changes take effect from 7 December 2022. There are changes to how bargaining for a new agreement can be initiated. In certain circumstances, an employee can now initiate bargaining by writing to their employer via a bargaining representative. The Commission can make a bargaining order following a request, even where the employer has refused to agree to bargaining.

Other changes to enterprise agreements and bargaining

There are other changes to enterprise agreements and bargaining. These relate to:

approval of enterprise agreements
better off overall test
bargaining disputes
industrial action (protected action ballots)
bargaining streams.

Abolition of the ABCC and the ROC

Abolition of the ABCC

The ABCC has been abolished. This took effect on 6 February 2023. All ongoing legal matters currently before the courts previously run by the ABCC have now been transferred to us. All building and construction industry employers and employees can seek workplace information, advice, and assistance from us. A new National Construction Industry Forum will also be established from 1 July 2023. This organization will operate as a statutory advisory body to the Government on workplace issues in the building and construction industry.

Abolition of the ROC

The ROC has been abolished. This took effect on 6 March 2023. The Registered Organizations Commissioner’s regulatory powers and functions have transferred to the General Manager of the Fair Work Commission (the Commission). There are new enforcement options for the regulation of registered organizations, which the General Manager of the Commission now administers. This includes infringement notices and enforceable undertakings. Registered organizations will continue to have the same reporting and compliance obligations under the Fair Work (Registered Organizations) Act 2009.

Proprietary blog of Karma Global Tech Management LLC

This blog has been collated and compiled by the internal staff of Karma Global with the knowledge and expertise that they possess, besides adaptation, illustration, derivation, transformation, and collection for its monthly newsletter Issue 10 of April 2023 and in case of specific or general information or compliance updates for that matter, kindly reach out to the Marketing Team – kush@karmamgmt.com / yashika@karmamgmt.com

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